Free speech and India

THE contemporary debate on intolerance of dissent has brought forth various shades of opinion. Sections of civil society are deeply concerned about the future of dissent in Indian democracy. Their concern stems from the rise in the reported number of threats to the exercise of freedom of expression and to views that are in conflict with the seemingly majoritarian outlook on many issues. Such threats have sometimes led to physical violence against dissenters, with the state unable to protect its citizens’ right to free expression. At times, in the face of abusive responses, people have conceded defeat and withdrawn their so-called offensive posts on social media. Silently. Others have argued that free speech advocates must not seek to restrict instances of abusive speech as it would only legitimise restrictions on good speech. India is yet to find a balance on the free speech discourse.

Advocates of free speech draw inspiration from the judiciary to assert their right. But the evolution of free speech jurisprudence in India has never been without its ups and downs. Chronicling these achievements and setbacks and analysing them to derive enduring principles to govern social conduct is not easy. It requires not only a sense of commitment to an individual’s right to free speech but an understanding of the reasonableness of the restrictions on free speech, which enjoy constitutional backing.

Gautam Bhatia, an advocate in the High Court of Delhi and visiting faculty at West Bengal National University of Juridical Sciences, does this admirably in his book Offend, Shock, or Disturb: Free Speech under the Indian Constitution .

In the book, recently published by Oxford University Press, Bhatia celebrates free speech cases ending with the 2015 Supreme Court judgment in Shreya Singhal vs Union of India that struck down Section 66A of the Information Technology Act for violating Article 19(1)(a) of the Constitution. These cases, according to him, are predicated upon a vision of the autonomous, responsible and choosing citizen. According to him, the acknowledgment in the Shreya Singhal judgment of the chilling effect of Section 66A on free speech has created the legal foundation for erasure of criminal defamation. The judgment’s affirmation that Article 19(2) scrutiny is medium-neutral knocks the bottom out of the justification for imposing prior restraint on cinema.

In this interview with Frontline , Bhatia answers questions relating to different aspects of his book.

Your book explores Indian free speech jurisprudence from a doctrinal, comparative and philosophical perspective and discusses, clause by clause, the development of law from colonial times. The Supreme Court decided “Sakal Papers vs Union of India” in 1962. The government issued price-per-page regulations that tied the price of a newspaper to its size. The court found that Article 19(2) did not allow restrictions on free speech in the general interest of the public and upheld the claims of newspapers by striking down the regulations. Did the government counsel in that case argue that creating an economic environment conducive to the entry and survival of smaller newspapers with diverse and varying viewpoints would fulfil its obligation to ensure free speech? Did the court consider this argument at all?

On the basis of the court’s summary of the submissions on both sides, the government counsel appears to have argued, albeit not in too much detail, that the purpose of the law and the regulation was to promote the ability of newspapers to exercise their right to free speech. The court itself framed the issue differently: as a clash between the freedom of speech of the big newspapers and the “public interest” in breaking up monopolies. This allowed it to strike down the regulations since “public interest” is not a ground under Article 19(2). As I argue in the book, how you frame the issue makes all the difference. The court did not think of the existing market conditions, which had a few big players dominating, as creating an impediment, or a barrier, to free speech. Consequently, it did not view the government’s attempt to restructure the market in a more egalitarian direction as actually expanding free speech.

There is a reference to B.R. Ambedkar’s reliance on the infamous “Gitlow vs New York”, decided by the United States Supreme Court in 1925, while justifying the Drafting Committee’s proposed restrictions on free speech. (In “Gitlow vs New York”, the Supreme Court held that speech with a “bad tendency” towards causing public disorder was punishable.) You observe that Ambedkar surely knew that by 1948 the U.S. Supreme Court had begun to move away from Gitlow and to adopt Justice Oliver Wendell Holmes’ dissent in that case, which defined a “clear-and-present-danger” test. How would you explain this historical irony, as you call it?

The only explanation, I think, is that in 1948 the dissenting opinions in the Red Scare cases [the Red Scare was a growing fear of communism in the U.S., which was most prevalent after each of the World Wars] delivered by the U.S. Supreme Court Judges Oliver Wendell Holmes and Louis Brandeis had not yet become as canonical as they would go on to be later. After all, in the 1950s, the U.S. Supreme Court would go on to uphold the prosecution of communists under the draconian Smith Act, and it was only in 1969, with Brandenburg vs Ohio , that the high degree of speech-protection granted by the American First Amendment was firmly established. Otherwise, there is no explanation for why Ambedkar, with all his erudition, would have chosen to rely upon a discredited case.

The four hypothetical questions you raise in Chapter 3, “Public Order”, show the degrees of freedom that can be canvassed in the debate on free speech. Thus, on the one hand, you would endorse a newspaper editorial advocating material support to the naxalites to back their stated goal of overthrowing the Indian state because the reader has the opportunity to either agree or disagree with the editor. But many people may consider this position unacceptable. On the other hand, you support punishing the person guilty of the offence of provoking a crowd to indulge in violence, by invoking the proximity test. Surely, the line separating an impassioned plea at a public meeting and a mischievous article in a newspaper or a post on social media is thin, and both could achieve similar results.

Yes, I agree. I don’t think you can have a bright line test for determining “proximity” in cases of speech and public disorder. T.M. Scanlon, whose philosophical arguments I rely upon, himself repudiated this line of thought in his later writings. However, I feel that this is an area where, necessarily, the legal tests will have to admit to a degree of vagueness. The potentiality, or time, for counter speech, is one convenient way of deciding when the proximity between speech and disorder is close enough to justify restricting speech. It’s not a perfect test, but I can’t think of any better.

You observe in a footnote in Chapter 3 that analysis of the many instances of prior restraint during the Emergency is beyond the scope of this book. What is your position on the then Chief Justice of India’s (the late Justice S.H. Kapadia,) defence of prior restraint in the Sahara case in 2012? Do you think it is defensible?

I don’t think Justice Kapadia seriously engaged with the question of why prior restraint is a greater restriction upon free speech than post-speech penalties. There is a significant amount of literature on how prior restraint decreases the costs of censorship, places the burden upon speakers, and so on, considerations that go to the heart of the “reasonableness” requirement of Article 19(2). The Sahara opinion—or, for that matter, any Supreme Court opinion dealing with prior restraint, such as K.A. Abbas —fails to deal with these issues. [In K.A. Abbas (1971), the constitutional validity of the Cinematograph Act, which permitted prior restraint, was under challenge before the Supreme Court. The court, in this case, upheld all the guidelines while requiring exceptions in the interests of art that is for the public good.]

You admire the Supreme Court’s verdict in “Arup Bhuyan vs State of Assam” (2011)—which stated that an individual cannot be convicted merely because of his or her membership of a banned organisation—as part of a great civil liberties tradition. What, according to you, should be done to make it an established part of the Indian constitutional landscape? Recently, the Nagpur bench of the Bombay High Court denied bail to the academic-activist Saibaba, and his mere membership of a banned organisation was apparently used to build a case against him of active membership.

Interestingly, at the same time, Justice Abhay Thipsay of the Bombay High Court has invoked Arup Bhuyan to grant bail in cases under the Unlawful Activities (Prevention) Act.

Since Arup Bhuyan is a decision of a two-judge bench, the position it enunciates is unstable, and is going to remain unstable until it is affirmed by a succession of two-judge benches or by a Constitution bench.

In the chapter “Obscenity and Pornography”, you observe that the framers of the Indian Constitution viewed the rights of free expression, assembly and association as far too important to be subjected to a general public interest exception. Is this your inference or did you make your observation on the basis of the proceedings in the Constituent Assembly?

It’s an inference from the fact that “public interest” is categorically excluded from Article 19(2) and specifically included in Article 19(6).

In the same chapter, you appear to be dissatisfied with the legal philosophers H.L.A. Hart and Ronald Dworkin because they justify restricting rights on the basis of the moral convictions of the majority if there is a high burden of proof. According to you, even a high burden of proof cannot justify such restrictions if they are based only on public morality, understood as the moral convictions of the majority. As the Supreme Court is all set to hear the curative petition in the “Naz vs Kaushal” case, do you not think that we should move away from the problems with identification of public morality instead of questioning the very need for it?

Yes, I think the Delhi High Court in Naz Foundation vs NCT was entirely correct in jettisoning “public morality” for “constitutional morality”. In the chapter, I highlight some of the problems with public morality: it is necessarily exclusionary, privileging some voices over others; it is vague; and it ends up running counter to the very notion of counter-majoritarian individual rights. Constitutional morality itself is not an easy concept and is likely to suffer from similar problems. For instance, we all agree that “equality” is part of constitutional morality. But “equality” can mean 10 different things, and depending on what conception you go with, you can reach different results. In the book, I try to provide a more concrete vision of constitutional morality, by situating equality within a number of constitutional provisions that aim not simply at formal equal treatment but active redressal of structural subordination (see Articles 15(2), 17 and 23). Of course, my position is bound to be controversial, but despite that I think there is something to be said for attempting to justify restrictions upon free speech by referring to constitutional principles, and not to public sentiment.

The discussion on the Indecent Representation of Women (Prohibition) Act starts with the premise that the Act may be grounded in constitutional morality but ends with a suggestion that it may be an unjustifiable restriction upon free speech. How do you think the inconsistency between the objective and the actual drafting of the Act could be removed in terms of amendments?

I think you’ll have to remove the phrase “likely to deprave, corrupt or injure the public morality or morals”. These terms take us back to the public-morality view of speech restriction. Of course, what remains, the phrase “derogatory to, or denigrating women”, is delightfully vague in its own right. I’m not sure how to deal with that problem, short of repealing the Act itself and replacing it with something along the lines of the Dworkin/MacKinnon Ordinance, which I’ve discussed in the book. [Catherine MacKinnon and Andrea Dworkin drafted an anti-pornography ordinance for the city of Indianapolis, in which they defined pornography as the “graphic sexually explicit subordination” of women through pictures or words that also includes women dehumanised as sexual objects, things or commodities (as distinguished from “erotica”, which was sexually explicit material premised on conditions of equality, and not covered by the ordinance). In American Booksellers vs Hudnut , the ordinance was struck down as unconstitutional.]

The chapter “Contempt of Court”, of course, deals with historical and contemporary issues. Although the book does not refer to it, what is your position on the ban the Calcutta High Court imposed 15 years ago on Hans Dembowski’s book on public interest litigation in India. The stay still continues, and even the Supreme Court has not been approached for vacation of the stay because the author himself is not a party before the High Court proceedings.

It’s hard to have an informed opinion on this since, to the best of my knowledge, the Calcutta High Court has never handed down a reasoned judgment on what precisely is contemptuous in the book, and of course, the book itself is not available! From what little I’ve gathered about the case, though, it seems to be an instance of judicial overeagerness to use contempt laws (stronger language would probably make this interview subject to contempt proceedings!).

On shield laws, I understand that you are in favour of protecting sources of journalists. If a journalist comes to know of the likely commission of an offence or gathers some information from a source that is useful in the investigation of an offence, what are his legal obligations?

If there was a strong shield law in place, then the journalist’s obligation to assist the police with regard to the potential commission of an offence or the ongoing investigation of one would not affect his right to maintain source confidentiality unless there was an overriding issue of public interest.

Recently, some journalists covering the Supreme Court’s hearing of the Manipur encounter case were reprimanded for reporting the proceedings inaccurately. They apologised to the court. What defence does a journalist have in such cases in the absence of official recordings of court proceedings?

The absence of official recordings makes such cases rather difficult. There’s no real legal answer to this question, but only a pragmatic one: report only what you’re sure you heard.